Douglas Verdier And Todd Verdier, Appellants V. Gregory Bost And Lauri Bost, Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DOUGLAS VERDIER and TODD VERDIER, No. 46095-5-II
Appellants,
v.
GREGORY BOST and LAURIE BOST, UNPUBLISHED OPINION
Respondent.
SUTTON, J. — Douglas and Todd Verdier appeal the trial court’s denial of their special
motion to strike and request for an award of statutory damages, reasonable expenses and attorney
fees under RCW 4.24.510 and .525, Washington’s anti-SLAPP statutes.1 The Verdiers argue that
the trial court erred because the defendants cannot avoid statutory damages by amending their
pleadings to eliminate the allegations prohibited by the anti-SLAPP statutes.
We hold that, because RCW 4.24.525 is unconstitutional, the Verdiers’s claims under
RCW 4.24.525 are moot. Further, we hold that the Gregory and Laurie Bosts’s amended pleadings
were proper, and thus, the Verdiers’s claims under RCW 4.24.510 are also moot. Accordingly,
we affirm.
FACTS
This matter arises from a dispute between neighbors, Douglas and Todd Verdier and
Gregory and Laurie Bost, over a common property line and shared well access and maintenance.
1 Strategic lawsuit against public participation (SLAPP).
Filed
Washington State
Court of Appeals
Division Two
March 8, 2016

No. 46095-5-II
2
On January 30, 2013, the Verdiers sued the Bosts to quiet title to the disputed land and damages
for the maintenance and use of the well. The Bosts filed their answer and affirmative defenses to
the Verdiers’s complaint on February 20, 2013.
On December 13, 2013, the Bosts filed their first amended answer, affirmative defenses,
and counterclaims alleging that both Verdiers had, at various times, entered and caused damage to
their property, and that, on a number of separate occasions, Todd Verdier attempted to verbally
and physically intimidate both of the Bosts. The Bosts further alleged that the Verdiers:
a) Falsely report[ed] to the Clark County Department of Health that raw sewage
was seeping from [the Bosts’s] property and entering the Washougal River;
b) Falsely report[ed] to the Washougal Fire Department that [the Bosts’s] campfire
in their riverside fire pit was an unmaintained and out of control fire[.]
Clerk’s papers (CP) at 13. The Verdiers failed to file any response to the Bosts’s affirmative
defenses or their first amended pleadings and counterclaims.
On February 14, 2014, the Verdiers filed a special motion to strike the Bosts’s allegations
that they made false reports to the Clark County Department of Health and the Camas-Washougal
Fire Department.2 The Verdiers alleged that they were immune from liability under RCW
4.24.510, and moved for statutory damages, reasonable expenses, and attorney fees and costs under
RCW 4.24.510 and .525(6)(a)(ii). Following the Verdiers’s motion to strike, the Bosts filed a
second amended answer, removing the allegations regarding false reporting by the Verdiers to the
health and fire departments.
2 Although related, the boundary dispute litigation is separate from the anti-SLAPP litigation,
which arose after the initiation of the boundary dispute.

No. 46095-5-II
3
In light of the Bosts’s amended pleadings, the trial court ruled that the Verdiers’s motion
to strike under RCW 4.24.525 and their request for statutory damages, reasonable expenses, and
attorney fees under RCW 4.24.510 were moot and denied the Verdiers’s motion. The Verdiers
appeal.
ANALYSIS
The Verdiers argue that the trial court erred when it ruled that their claims were moot and
denied their special motion to strike and request for statutory damages, reasonable expenses and
attorney fees under RCW 4.24.510 and .525. They also argue that the Bosts cannot avoid liability
for the statutory damages available under RCW 4.24.510 by amending their pleadings to remove
the offending allegations implicating RCW 4.24.510. We disagree.
I. LEGAL PRINCIPLES
A strategic lawsuit against public participation, a SLAPP suit, is a meritless suit filed
primarily to chill a defendant’s exercise of First Amendment rights. City of Seattle v. Egan,
179 Wn. App. 333, 337, 317 P.3d 568 (2014). This court reviews the denial of an anti-SLAPP
motion de novo. Bevan v. Meyers, 183 Wn. App. 177, 183, 334 P.3d 39 (2014). Both RCW
4.24.510 and .525 allow recovery of statutory damages, reasonable expenses, and attorney fees.3
3 RCW 4.24.525(6)(a-b) allowed the prevailing party to recover statutory sanctions, reasonable
expenses, and attorney fees; however, RCW 4.24.510 allows only “[a] person prevailing upon the
defense” of allegations based on reporting to a government agency to recover statutory damages,
reasonable expenses, and attorney fees.

No. 46095-5-II
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In 2015, our Supreme Court struck down RCW 4.24.525 as unconstitutional.4 Davis v.
Cox, 183 Wn.2d 269, 296, 351 P.3d 862 (2015). Before our Supreme Court declared it
unconstitutional, RCW 4.24.525(4) provided for a procedural defense against a SLAPP suit—the
special motion to strike; however, RCW 4.24.510 does not provide for such a procedural
mechanism. RCW 4.24.510 states,
A person who communicates a complaint or information to any branch or
agency of federal, state, or local government . . . is immune from civil liability for
claims based upon the communication to the agency or organization regarding any
matter reasonably of concern to that agency or organization. A person prevailing
upon the defense provided for in this section is entitled to recover expenses and
reasonable attorneys’ fees incurred in establishing the defense and in addition shall
receive statutory damages of ten thousand dollars. Statutory damages may be
denied if the court finds that the complaint or information was communicated in
bad faith.
Although RCW 4.24.510 provides no procedural mechanism to defend a SLAPP suit, a
party may still be immune from civil liability and recover statutory damages, reasonable expenses,
and attorney fees under RCW 4.24.510. See, e.g., Segaline v. Dep’t of Labor & Indus., 169 Wn.2d
467, 238 P.3d 1107 (2010); Harris v. City of Seattle, 302 F. Supp. 2d 1200 (W.D. Wash. 2004).
While the anti-SLAPP statute entitles a defendant to immunity from liability for bad-faith reporting
to a government agency, it does not entitle him to recover statutory damages, reasonable expenses,
and attorney fees. See RCW 4.24.510.
II. AMENDED PLEADING
The Verdiers argue that the Bosts cannot amend their pleadings to avoid the sanctions
imposed by RCW 4.24.510. We disagree.
4 Because RCW 4.24.525 is unconstitutional, Verdiers’s claims on appeal pertaining to
RCW 4.24.525 are moot. Therefore, we address only the claims related to RCW 4.24.510.

No. 46095-5-II
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A party may amend a pleading at any time before a responsive pleading is served or, if the
pleading is one that does not require a response and the matter is not on the trial calendar, at any
time within 20 days after the initial pleading is served. CR 15(a). Otherwise, the party may amend
its pleading only with permission of the court or by written consent of the other party. CR 15(a).
The court is required to freely give the requesting party leave to amend when “justice so requires.”
CR 15(a). The amended complaint supersedes the original complaint. Henne v City of Yakima,
177 Wn. App. 583, 588, 313 P.3d 1188 (2013), rev’d on other grounds, 182 Wn.2d 447 (2015).
Here, there is no evidence in the record that the Verdiers ever responded to any of the
Bosts’s pleadings asserting their affirmative defenses and counterclaims. CR 15 allows a party to
amend a pleading at any time before receiving a response, and if a response is not required, then
within 20 days of filing. The Bosts’s asserted affirmative defenses and counterclaims required a
response from the Verdiers, and because there is no evidence that they ever did respond, the Bosts’s
second amended answer filed after the motion to strike is a proper pleading. Thus, under CR 15,
the Bosts had a right to amend their pleading to remove the offending allegations. Therefore, even
if RCW 4.254.510 provided a means of recovery if the Verdiers successfully defended the SLAPP
lawsuit, the amended pleadings rendered their claims moot, and the trial court properly denied the
Verdiers’s motion to strike and request for statutory damages, reasonable expenses, and attorney
fees under RCW 4.24.510. Accordingly, we affirm.

No. 46095-5-II
6
ATTORNEY FEES
Both parties request attorney fees under RAP 18.1 should they prevail on appeal.5 Neither
the Verdiers nor the Bosts are entitled to attorney fees on appeal.
A prevailing party may recover attorney fees only if provided by statute, agreement, or
equitable principles. Tacoma Northpark, LLC v. NW, LLC, 123 Wn. App. 73, 84, 96 P.3d 454
(2004). RAP 18.1 requires more than just a bald request for attorney fees, and the party requesting
fees must provide argument and citation to authority to support their request. In re Marriage of
Coy, 160 Wn. App. 797, 808, 248 P.3d 1101 (2011). Here, the Bosts do provide citation to case
law supporting their request. However, the authority those cases cite is RCW 4.24.525(6)(a)(i),
which was ruled unconstitutional by our Supreme Court in Davis. 183 Wn.2d at 295-96. The
remaining statute, RCW 4.24.510 provides recovery of attorney fees and costs to a “person
prevailing upon the defense” of claims that violate the statute. The Bosts were not the party
asserting a defense under RCW 4.24.510, and cite no other statutory authority, contract agreement,
or equitable principles to support their request for attorney fees. Thus, we deny their request for
attorney fees under RAP 18.1.
5 The Bosts cite to Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1117 (W.D. Wash.
2010) and Davis v. Cox, 180 Wn. App. 514, 551, 325 P.3d 255 (2014), reversed, 183 Wn.2d 269
(2015), which provide that the prevailing party on appeal is entitled to attorney fees under RCW
4.24.525(6)(a)(i).

No. 46095-5-II
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CONCLUSION
We hold that, because RCW 4.24.525 is unconstitutional, the Verdiers’s claims under
RCW 4.24.525 are moot. Further, we hold that the Bosts’s amended pleadings were proper, thus,
the Verdiers’s claims under RCW 4.24.510 are also moot. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
BJORGEN, A.C.J.
MELNICK, J.